gage has been given, and setting up that it is fraudulent and void, or has been paid, and ask to have it so decreed, or make a person so holding it a party, and ask to have the premises sold to pay the mortgage." This practice is recognized by Mr. Justice Van Syckel in Bigelow v. Cassedy, 26 N. J. Eq. 561. He says: "Even if the bill charges the prior mortgage to be void or paid, and it turns out to be a valid subsisting incumbrance, the mortgaged premises will not be sold to pay the prior mortgage without the consent of the prior mortgagee." The charge in the bill, therefore, that the first mortgage was paid, was entirely proper, and if Mr. Newcomb had been brought into the suit because of his interest in such mortgage, and there had been a decree that this mortgage was paid, there can be no doubt that he would have been estopped from now setting up the existence of his mortgage. And although he was brought into the suit as the owner of the equity of redemption, yet, he having knowledge of his unrecorded equitable assignment of the mortgage, I think he was bound to defend against the attack made upon the mortgage. But conceding all this, I do not see how the decree, as framed, can be regarded as concluding Mr. Newcomb upon the question whether this mortgage was paid. There was no prayer in the bill for such a decree, and no decretal order was made adjudging that the mortgage to the Alliance Land Trust was paid and should be canceled of record.

The decree, so far as it directed the payments of the money to be realized from the sale of the mortgaged premises, is in no way significant respecting the existence or nonexistence of the first mortgage. There would have been no payment to the first mortgagee under the bill as framed in any event. The distribution of the money raised would have been exactly the same whether the property was sold free from or subject to the lien of a prior mortgage. Now, with the exception of the direction as to the distribution of the money raised upon this foreclosure sale, the decree contains nothing but the ordinary order that the defendants stand foreclosed from all equity of redemption in so much of the mortgaged premises as shall be sold. The first mortgagee had no right of redemption of which he could be foreclosed. He held a superior interest, which, as already remarked, could not be foreclosed in that suit. The decree, therefore, applied to those defendants only who held subsequent incumbrances or interests.

There should be a decree for the complainant.

(69 N. J. L. 606)

MOORE v. SEYMOUR. (Supreme Court of New Jersey. June 8, 1903.) PUBLIC OFFICES-LEGAL EXISTENCE_QUO

WARRANTO.

1. The act under which defendant was elected a member and also president of the common

council of a city was declared unconstitutional. Relator applied for leave to file an information in the nature of a writ of quo warranto against defendant, and in the proceeding proposed to attack not only defendant's title to the office, but also the legal existence of the office itself. Held, that whether the office had a legal existence could be determined only at the instance of the Attorney General, acting in his public capacity.

Application for a writ of quo warranto by the state, on the relation of Russell W. Moore, against John Seymour. Application denied.

Argued February term, 1903, before VAN SYCKEL and GARRETSON, JJ.

Benjamin F. Jones, for relator. Arthur B. Seymour, for defendant.

PER CURIAM. This is an application for leave to file an information in the nature of a writ of quo warranto directed to John Seymour, directing him to show by what authority he claims to have and enjoy the office of a member of the common council of the city of Orange, and of president of said common council. The act under which Seymour was elected was declared unconstitutional in Christie v. Bayonne, 64 N. J. Law, 191, 44 Atl. 887. In this proceeding the relator proposes to attack not only the title of Seymour to the office, but also the legal existence of the office itself. In the case of Holloway v. Dickinson et al., 54 Atl. 529, the opinion of Mr. Justice Pitney, in the Supreme Court, at the last February term, holds that members of a de facto board of education, organized under the general school law (Laws 1902, p. 69, c. 36), cannot be ousted at the instance of a private relator in quo warranto on the ground that such board of education has no legal corporate existence. Whether the office which Seymour is claiming to hold has a legal existence can be determined only at the instance of the Attorney General, acting in his public capacity as the representative of the people of the state.

The application, therefore, of Russell W. Moore for leave to file an information, is denied, with costs.

(69 N. J. L. 592)

STATE v. YOUNG et al. (Supreme Court of New Jersey. June 8, 1903.) CRIMINAL LAW-JURISDICTION OF SUPREME COURT-STRUCK JURY.

1. Under Gen. St. p. 2570, § 229, providing that every issue joined in the Supreme Court or brought to the Supreme Court for trial shall be tried in the county where the cause of action or offense has arisen or been committed, or shall arise or be committed, unless the Supreme Court, on motion in behalf of the state, if the state be interested, shall order trial at the bar of that court, defendants charged with manslaughter were not entitled, on their application, to a trial at the bar of the Supreme Court. 2. Cr. Proc. Act (P. L. 1898, p. 895) § 76, provides that struck juries shall be selected from the persons qualified to serve as jurors

in and for the county in which the indictment was found. Section 79 requires that a foreign jury shall be selected in the same manner as the general panel is selected, which Gen. St. p. 1854, § 50, requires to be selected by the sheriff. Held, that defendants charged with manslaughter were not entitled to a struck jury, to be selected by the court from a county other than that in which the indictment was found.

Edward F. C. Young and others were charged with manslaughter. On motions for trial at the bar of the Supreme Court and for a struck jury. Motions denied.

Argued June term, 1903, before GARRISON, GARRETSON, and SWAYZE, JJ.

James B. Vredenburgh, George T. Werts, and Richard V. Lindabury, for the motions. Chandler W. Riker, opposed.

PER CURIAM. The defendants were indicted at the Essex oyer and terminer for manslaughter. The indictment has been removed by certiorari into this court. The defendants now move for a trial at the bar of this court, and for a struck jury to be selected from a county other than Essex.

We think we are without power, under existing statutes, to grant either motion. The right to a trial at bar as it originally existed has been limited in this state by a statute passed in 1799, and now printed as section 229 of the practice act (Gen. St. p. 2570). This section was originally section 3 of "An act relative to the Supreme and Circuit Courts." Paterson's Laws, p. 393. It requires every issue joined in the Supreme Court or any other court, and brought into the Supreme Court for trial, to be tried in the county where the lands are situate, "or the cause of action or offense hath arisen or been committed or shall arise or be committed, unless the Supreme Court, upon motion in behalf of the state, if the state be interested, or upon motion of either party in the action, shall think proper to order the trial to be at the bar of the said Supreme Court, which shall only be done when the matter or property in dispute shall be of the value of three thousand dollars."

The Supreme Court had in 1799, as now, cognizance of criminal cases (see the Ordinance of 1751, 1 Halsted, Appendix, vi), and there can be no doubt that when the act of 1799 referred to an "offense," and required a trial in the county where it was "committed," it referred to criminal cases. In such cases the state is interested, and the motion for a trial at bar must be made in behalf of the state. It cannot be made by the defendants. It is not necessary now to decide whether the clause providing that the order for trial at bar shall be made only when the matter in dispute is of the value of $3,000 indicates a legislative intention to limit trials at bar to civil actions. The motion for a trial at bar must therefore be denied.

The defendants also move for a struck jury from a county other than Essex. Sec

tions 75 and 76 of the criminal procedure act (P. L. 1898, pp. 894, 895) provide for struck juries. Sections 78 and 79 provide for foreign juries. By section 76 struck juries are required to be selected from the persons qualified to serve as jurors in and for the county in which the indictment was found. This excludes the selection of a struck jury from another county. Section 79 requires that a foreign jury shall be selected in the same manner as the general panel of jurors is selected. This method is prescribed by the supplement to the act concerning juries (Gen. St. p. 1854, § 50). This statute imposes the duty of selecting the general panel of jurors upon the sheriff.

There may be, under the Criminal Procedure Act, a jury selected by the court from the county in which the indictment is found, or there may be a jury selected by the sheriff from another county. There is no provision for a jury to be selected by the court from another county. Inasmuch as the motion made in this case is neither for the struck jury nor for the foreign jury authorized by the statute, but for a kind of jury for which there is no statutory authority, the motion must be denied.

Both motions are denied, with costs.

(65 N. J. E. 119) TRENTON TRUST & SAFE DEPOSIT CO. v. DONNELLY et al.

(Court of Chancery of New Jersey. May 25, 1903.)

WILLS

BEQUESTS LIFE TENANTS AND REMAINDERMEN-DIMINUTION OF CORPUS -HEIRS-NEXT OF KIN.

1. Money was bequeathed in trust to pay the interest to one for life, the corpus to go to others on her death. The corpus was diminished by unfortunate investments, and thereafter interest on the reduced corpus alone was paid the life tenant. Held, that the loss should be apportioned by paying the reduced corpus to the remaindermen and the personal representative of the life tenant in the proportion that the original corpus bears to the unpaid interest on the part of the corpus which was lost.

2. Money was bequeathed in trust to pay the interest, less the taxes, to one for life, and after her death the corpus to others. The trustees loaned it on a mortgage, which, in consideration of a low rate of interest, bound the borrower to pay the taxes. The trustees were obliged to foreclose, and bought in the property, selling it for less than the corpus of the bequest, after paying taxes which were a lien on it when they bought it. Held, that such payment of taxes was not to be charged to the life tenant's interest.

3. The word "heirs" in a will giving personal property to a person, or, in case of his death, to his heirs, means next of kin.

4. Where testator bequeathed money in trust to pay the interest to his wife for life, and at her death bequeathed part of the principal to his sister, or, if she should die before receiving her share, then to her heirs, and the remainder of the principal to the heirs of his deceased brother, the next of kin of the sister are to be ascertained as of the date of her death, she dying before receiving her share, and those of the brother as of the date of testator's death.

Bill by the Trenton Trust & Safe Deposit Company, trustee under Theodore Blackwell's will, against Bessie Blackwell Donnelly and others, for construction of the will. Will construed.

James Buchanan, for complainant. William M. Lanning, for defendants Florence Blackwell and Emily Blackwell. Alfred M. Lafetra, for defendant Bessie Blackwell Donnelly. Dungan & Reger, for defendant Jacob Kline, Jr. Frederic M. Pierce, for defendant Morgan.

REED, V. C. Theodore Blackwell made a will on October 12, 1872. The fourth, fifth, and sixth clauses are as follows:

"Fourth. I give, devise and bequeath to my said Executors and the survivor of them the sum of Twenty Thousand dollars, in Trust, nevertheless, to invest and keep the same invested, and the interest which shall accrue thereon less taxes and necessary expenses to pay semi-annually to my beloved wife Sarah I. Blackwell for and during the term of her natural life, or during the term she remains my widow which shall be in lieu of her right of dower in my estate.

"Fifth. All the rest and residue of my estate I give devise and bequeath as follows to wit, one third thereof to each one of my two sisters Rebecca Weart and Elizabeth Rockwell share and share alike and to their heirs forever, and the remaining one third thereof to the heirs of my deceased brother Philemon Blackwell.

"Sixth. At the decease of my said wife or at her marriage, the said sum of Twenty Thousand dollars invested for her use as herein before directed I also give, devise and bequeath as follows, to wit, one third thereof to each of my said sisters Rebecca Weart and Elizabeth Rockwell, share and share alike, and if either one or both of my said sisters should died before receiving the share or shares to them given in this my will, then the lawful heir or heirs of such deceased sister shall have and take the share of such deceased ancestor, and the remaining one third thereof I give, devise and bequeath to the heirs of my deceased brother Philemon Blackwell."

Testator died without issue November 4, 1872. He left, surviving him, his widow, Sarah I. Blackwell, a sister Rebecca Weart, a sister Elizabeth Rockwell, and two children Jacob Blackwell and Ephraim W. Blackwell, the children of a deceased brother, Philemon Blackwell. Sarah I. Blackwell, the widow, died July 21, 1902.

The questions propounded are in respect to the course which the remainder of the legacy of $20,000 shall take, the life tenant being dead. Rebecca, one of the sisters, married John A. Weart. She died July 13, 1888, leaving a child, John A. Weart, Jr. By her will she left her property to John A. Weart, Jr., and her granddaughter, Bessie B. Weart.

The wife of John A. Weart, Jr., died intestate, leaving Bessie B. Donnelly (neé Weart) her only next of kin. Elizabeth Rockwell, having married one Charles Morgan, who predeceased her, died intestate in February, 1885, leaving a number of children by this marriage surviving, three of whom are now dead. Philemon Blackwell died intestate August 2, 1844, leaving two children, one of whom (Jacob) died April 1, 1863, before the death of the testator. The other son (Ephraim) died August 10, 1888, after the death of the testator.

The first question arises between the personal representative of the life tenant and the remaindermen, and it arises because of the fact that the corpus of the estate of $20,000, devised in the clauses already displayed, has become diminished by unfortunate investments, so that the trustees, instead of having in hand the sum of $20,000, have only the sum of $14,232.51. The corpus of the estate was secured by a mortgage, which was foreclosed, and the mortgaged property was bought in by the trustees, who afterwards sold the same for the sum of $16,000, which sum, after paying the expenses of reducing the same to money, the taxes, and commissions, was, as already remarked, reduced to the sum of $14,232.51. The property was bought in by the trustees at foreclosure sale on October 4, 1899, and was sold by them 15 days later. The life tenant was paid interest in full upon the $20,000, less expenses, down to October 1, 1898. Thereafter the trustees paid interest upon the reduced amount that came to their hands down to the death of the widow, with the exception of $225.06.

The question propounded is whether the executors of the widow are entitled not only to this sum of $225.06, but also to the amount of interest which should have been paid had the corpus of the estate remained unimpaired down to the date when the security held by the trustees was turned into money. The amount of this unpaid interest is admitted to have been $1,144.03. The rule which has been laid down in a number of cases respecting the apportionment of a loss occurring under conditions like the present is that the loss shall be apportioned between the life tenant and the remaindermen in the proportion that the debt due the first bears to the amount which should come to the second, namely, the amount of the corpus of the estate; or, conversely, the amount realized shall be set apart to the remaindermen and the life tenant in the proportion that the corpus bears to the unpaid interest due the life tenant. By force of this rule the $14,232.51 should be divided in the proportion that $20,000 bears to $1,144.03.

But it is insisted that the taxes paid by the complainant should be deducted from the life tenant's share thus ascertained. In my judgment this position is not tenable. I am aware that Chancellor Magill, sitting as ordinary,

did so order in Tuttle's Case, 49 N. J. Eq. 260, 24 Atl. 1, where the trustee had paid taxes which had been assessed upon real estate intervening the time of the trustee's acquisition of the land and the time of the sale made of the same by the trustees. Under the conditions presented in that case, the ordinary thought it equitable to deduct these taxes from the life tenant's share after it had been apportioned according to the rule already mentioned. In the present case the tax paid, so far as appears, was not assessed upon the property during the time it was held by the trustees under the title got by them at the foreclosure sale. The taxes were paid as a lien upon the property when it came to the hands of the trustees. The property could have been sold subject to this lien, but the trustees thought it advisable to discharge this lien so as to give an unincumbered title. The payment of the tax was therefore in reality one of the expenses incurred in transmuting the realty into cash to the best advantage.

Nor was the tenant for life bound to pay taxes upon this property specifically, either before or after the right of the trustees to enter for breach of condition in the mortgage accrued. The life tenant was obliged to pay the tax upon the corpus, and she was entitled, not to the income of this real estate, but to the income which $20,000, less the taxes, would produce. Now, if the 5 per cent. upon this amount, upon the basis of which the debt due the life tenant is computed, is more than the $20,000 would produce, less taxes, it would follow that the debt of $1,144.03 is too much. This follows because she was only entitled to the production of the corpus, less the taxes which she was bound to pay. By the provision in the mortgage, these taxes were so paid by fixing the interest to be paid by the borrower at a lower rate and binding him to pay the taxes. There is nothing to show that the corpus would not have produced the 5 per cent. as well as the amount of the tax up to the time the security was realized. By reducing the annual income to 5 per cent. the taxes were in fact deducted from the income of the life tenant. In my judgment, the representatives of the life tenant are entitled to share in the corpus in the proportion already indicated, and her share is not to be diminished by any reduction on account of these taxes.

Another question propounded is whether the testator, in the use of the word "heirs" in the fifth and sixth clauses of his will, is to be regarded as intending by that term "the next of kin of the legatees." The testator was dealing with property which he had peremptorily directed to be transmuted by his executors from realty into personalty. may be regarded as settled in this state that the word "heirs" is interpreted in reference to the kind of property, whether real or perBonal, which is the subject of testamentary disposition; and, when those words are used

It

in respect to personal property, they will be construed to mean "next of kin." Scudder v. Vanarsdale, 13 N. J. Eq. 109; Leavitt v. Dunn, 56 N. J. Law, 311, 28 Atl. 590, 44 Am. St. Rep. 402.

In respect to the time when the next of kin are to be ascertained, I am of the opinion that the gift to Mrs. Rockwell, or in the event of her dying before receiving the share given to her, she having died before receiving her share, this share goes to her next of kin ascertained as of the date of her death, in February, 1885. Gundry v. Pinniger, 14 Beav. 94, 98; Jacobs v. Jacobs, 16 Beav. 557. In respect to the gift to the "heirs of my deceased brother Philemon Blackwell," his next of kin is to be ascertained as of the date of the death of the testator, October 12, 1872. Wharton v. Barker, K. & J. 483-488; Phelps v. Evans, 4 De G. & S. 188.

These answers dispose of all the mooted queries propounded in the bill.

(69 N. J. L. 464)

STATE v. CHAPMAN. (Supreme Court of New Jersey. June 8, 1903.) CONSTITUTIONAL LAW-VESTED RIGHTS-EX POST FACTO LAW-REGULATING PRACTICE OF DENTISTRY-POLICE POWER.

1. The act entitled "An act to regulate the practice of dentistry in the state of New Jersey, and to repeal certain acts now relating to the same," approved March 17, 1898, P. L. 1898, p. 119, coupled with the previous legislation on the subject, is not unconstitutional.

2. The act does not impair vested rights, nor is it in its criminal provisions an ex post facto law.

3. A calling, business, or profession chosen and followed is property. The Legislature cannot destroy it by statute without providing for compensation, any more than it can authorize the taking of real estate for a public use except upon compensation.

4. The act of March 17, 1898, is not an act taking or destroying property, but is a reasonable regulation of the practice of dentistry in this state.

5. It is within the power of the state, under the police power, to impose by statute reasonable restrictions as to registration and the obtaining of a certificate of authority to engage in the practice of dentistry, and to make it a misdemeanor for a person to practice without first obtaining such certificate.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Cumberland County.

Martin V. Chapman was convicted of practicing dentistry without a license, and brings error. Affirmed.

Argued November term, 1902, before the CHIEF JUSTICE, and VAN SYCKEL, PITNEY, and FORT, JJ.

Wheaton Berault and Howard Carrow, for plaintiff in error. J. Hampton Fithian and Halsey M. Barrett, for the State.

FORT, J. The defendant was convicted in the Cumberland county quarter sessions

5. See Physicans and Surgeons, vol. 39, Cent Dig. §§ 1, 2.

That the defendant did not have a license to practice dentistry in this state from the State Dental Board was proven at the trial by independent evidence, as well as by the defendant's own admission. The defense was that the defendant was a practicing dentist in this state in 1872, and has been since that date, and that any statute which attempts to impose upon him a condition not existent at the time he entered upon such practice is unconstitutional, because it (1) impairs his vested rights and (2) is ex post facto.

It is conceded that there is no justification for the indictment in this case except under section 12 of the act of 1898, entitled "An act to regulate the practice of dentistry in the state of New Jersey, and to repeal certain acts now relating to the same," approved March 17, 1898. P. L. 1898, p. 119. Prior to the passage of the act of 1898 there had been statutes regulating registration for and the practice of dentistry, but none of these were in force when the indictment upon which the defendant was convicted was found, nor at the date alleged in the indictment as the time when the offense was committed. The act of 1898 expressly repealed all previous acts on this subject. P. L. 1898, p. 128, § 17. If, therefore, the act of 1898 is unconstitutional in the respects alleged, the conviction cannot stand. The laws regulating dentistry are of later enactment than those regulating the practice of medicine, but the principles underlying their legality are the same. A statute of West Virginia similar in import to the New Jersey act of 1898, except that it regulated the practice of medicine, was sustained, as a valid exercise of the police power of the state, by the Supreme Court of the United States. Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623; State v. Creditor (Kan.) 24 Pac. 346, 21 Am. St. Rep. 306; Hockett v. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201. Nor is such legislation ex post facto. Hawker v. New York, 170 U. S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002. See, generally, text and notes in Am. & Eng. Ency. of Law (2d Ed.) vol. 22, pp. 781, 782, and the cases cited. The Constitution of New Jersey in no wise prohibits such legislation in any respect in which it would not be equally interdicted by the Constitution of the United States, unless it can be said that such legislation interferes with the natural and unalienable right of "acquiring, possessing and protecting property" guarantied by article 1, par. 1, of our state Constitution.

A calling, business, or profession chosen and followed is property. Barr v. Essex Trades Council, 53 N. J. Eq. 101, 112, 30 Atl. 881; Slaughter House Cases, 16 Wall. 36, 21 L. Ed. 394. The Legislature can no more destroy a business by statute without providing for compensation, than it can authorize a

public use except upon compensation. But does the act of 1898 take the defendant's property or calling from him? We do not so construe it or its effect. It is simply a regulation of the use of one's property rights or business, controlling the conditions under which it may be enjoyed or pursued. It is within the power of the state to place reasonable regulations upon the business or calling of any person. The court, in State v. Creditor, supra, says: "The power of the Legislature to regulate the practice of medicine, dentistry, or surgery is undoubted; it is an exercise of the police power of the state for the protection of the health and the promotion of the comfort and welfare of the people. It may provide that only those possessing skill and learned in these professions shall be permitted to practice; may prescribe the nature and extent of the qualifications required, and the rules for ascertaining and determining whether those proposing to practice come up to the statutory standard. If the regulations and conditions are adopted in good faith, and they operate equally upon all who may desire to practice and who possess the required qualifications, and if they are adapted to the legislative purpose of promoting the health and welfare of the people by excluding from the practice those who are ignorant and incapable, then the fact that the conditions may be rigorous, impolitic, and unjust will not render the legislation invalid." The following cases sustain the rule here declared: State v. State Med. Ex. Board, 32 Minn. 324, 20 N. W. 238, 50 Am. Rep. 575; Hewitt v. Charier, 16 Pick. 353; Eastman v. State, 109 Ind. 278, 10 N. E. 97, 58 Am. Rep. 400; Hedderich v. State, 51 Am. Rep. 768. For 80 years New York has had such a statute, and her courts held it valid. Sheldon v. Clark, 1 Johns. 513. Arkansas has sustained a statute for the regulation of dentistry. Gosnell v. State, 52 Ark. 228, 12 S. W. 392.

The defendant, conceding for that purpose that the act of 1898 was valid, contends that he was practicing dentistry in the state in 1873, and he was by the act entitled "An act to regulate the practice of dentistry and protect the people against empiricism in relation thereto in the state of New Jersey," approved March 14, 1873 (P. L. 1873, p. 52), licensed by the state to practice dentistry by section 9 of that act. This act created a board of examiners, and provided that after its passage it should be unlawful for any person to engage in the practice of dentistry within the state unless such person be graduated and receive a diploma from the faculty of a college, chartered as In the act provided; and by section 9 it was provided as follows: "Nothing in this act shall apply to persons who shall be engaged in the practice of dentistry in this state at the time of the passage of this act." P. L. 1873, p. 53.